Honble TATIA, J.–Heard learned counsel for the petitioner.

(2). The petitioner is aggrieved against the order dated 10.04.2003 by which the petitioners application dated 20.03.2003 was dismissed by the Trial Court.

(3). Brief facts of the case are that the non-petitioner who is wife of the petitioner filed one divorce petition against the petitioner in the Trial Court. The grounds for seeking relief of divorce are cruelty and desertion. The petitioner submitted reply to the divorce petition and also filed counter-claim and sought relief of divorce on the ground of cruelty and desertion, therefore, there are allegations and counter-claim of cruelty and desertion by each party against other. The petitioner submitted an application under Section 151 CPC and requested that in case, non-petitioner-applicant withdraws the allegations of cruelty and desertion, then the decree may be passed for which the petitioner will have no objection. It is also stated that the petitioner is prepared to submit joint divorce petition under Section 138. The said application was resisted by the non-petitioner-applicant and the application of the petitioner was dismissed by the Trial Court by order dated 16th Jan., 2003 after considering the judgments of the Honble Supreme Court as well as judgment of the Division Bench of this Court, which are again relied upon by learned counsel for the petitioner in support of this petition also.

(4). The trial court while rejecting application of the petitioner held that in this matter the reconciliation proceeding has not taken place and the judgments relied upon by learned counsel for the petitioner are not applicable to the facts of the present case and thereafter, observed that passing of a decree under the provisions of Order 8 Rule 6E CPC depends upon the discretion of the Court and that discretion is required to be a judicial discretion. Ultimately, the Court held that by exercising judicial discretion, the Court is of the opinion that till reconciliation proceeding do not take place, there is no reason for passing the decree and therefore, rejected the application of the petitioner and fixed the date for finding out possibility of reconciliation between the parties.

(5). It appears from the facts of the case that when the non- petitioner did not appear before the Trial Court for reconciliation on 27th Feb., 2003 and 20.03.2003, the petitioner submitted an application again for grant of divorce decree in the counter-claim of the petitioner, the trial court adjourned the matter for reconciliation proceedings, which ultimately failed on 2.04.2003. The Trial Court fixed the matter for arguments on the application of the petitioner-non- applicant. The respondent-applicant before the Trial Court submitted that she does not want to file the reply to the application filed by the petitioner-non-applicant under Order 8 Rule 6-E CPC. The arguments on the application were heard and ultimately, by order dated 10.04.2003 the application of the petitioner for grant of divorce in counter-claim of the petitioner was again dismissed.

(6). According to learned counsel for the petitioner, it is clear from the facts of the case that there are allegations of cruelty and desertion against the respondent-non-applicant, which have not been denied by the respondent by filing reply to the counter- claim and, therefore, the Court should have passed the divorce decree in favour of the petitioner under the provisions of Order 8 Rule 6-E CPC, which provides that if the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronouce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit. Learned counsel for the petitioner further submitted that when there are prayers of both the parties for grant of decree of divorce, who levelled allegations of cruelty and desertion losses its significance and the C

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